Nightingale v Recorder of Titles - [2018] TASSC 56

[2018] TASSC 56

COURT: SUPREME COURT OF TASMANIA

CITATION: Nightingale v Recorder of Titles [2018] TASSC 56

PARTIES:  NIGHTINGALE, Robert Frank
  NIGHTINGALE, Anita Ruth
  v
  RECORDER OF TITLES

FILE NO:  784/2017
DELIVERED ON:  1 November 2018
DELIVERED AT:  Launceston
HEARING DATE:  5 September 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Real Property – Torrens title – Amendment or variation of title record – Extent of Recorder's power – Application for rectification of boundary led to correction of Register on one of the relevant folios but not the other – Whether the Recorder has power to amend the erroneous folio – Recorder should exercise power to remedy the inconsistency to ensure the accuracy of the Register.

Land Titles Act 1980 (Tas), ss 32, 139, 142, 144.
Acts Interpretation Act 1931 (Tas), ss 10A, 20 (a).
Quarmby v Keating [2008] TASSC 71, 18 Tas R 284, referred to.
Purton v Jackson [2012] TASFC 2, applied.
Aust Dig Real Property [1236]

REPRESENTATION:

Counsel:
             Applicants:  L Sealy SC and P Sutherland
             Respondent:  P Turner
Solicitors:
             Applicants:  Murdoch Clarke
             Respondent:  Office of the Solicitor-General

Judgment Number: [2018] TASSC 56
Number of paragraphs: 63

Serial No 56/2018
File No 784/2017

ROBERT FRANK NIGHTINGALE and ANITA RUTH NIGHTINGALE
v RECORDER OF TITLES

REASONS FOR JUDGMENT BRETT J

1 November 2018

This application concerns the location of the boundary between two pieces of land. One property is owned by the applicants and the other by Mr and Mrs Yarnall. I will refer to each property as the Nightingale land and the Yarnall land respectively.
The facts are not in dispute. In 1998, the applicants constructed a building which they deliberately located 200mm inside the common boundary between the two properties (the boundary). They did this in order to leave room for guttering and drainage works. The wall of the building facing the boundary was clad in Besser stone. This was because of an arrangement with the then owners of the Yarnall land that there would be no fence erected on the boundary, and that the Besser stone wall would form a backdrop to their garden. The respective owners at that time agreed that the boundary had, prior to that construction, been on a line depicted by a paling fence.
After Mr and Mrs Yarnall purchased the land in 2012, a dispute arose between the respective owners concerning the precise location of the common boundary. According to the applicants, this dispute arose because of a misunderstanding by Mr and Mrs Yarnall as to the location of the boundary, having regard to the absence of a fence and the location of the stone wall. Shortly after the dispute arose, Mr and Mrs Yarnall engaged a surveyor, Mr Cromer, to survey the boundary. It is common ground that in late 2014 and early 2015, Mr and Mrs Yarnall lodged documents with the Recorder of Titles which, in effect, requested the Recorder to alter the boundary to accord with a plan of survey which had been prepared by Mr Cromer. This plan of survey showed the boundary in a different location to that which was originally shown on the title to each piece of property, and which accorded with Mr and Mrs Nightingale's understanding of the location of the boundary.
Mr and Mrs Nightingale were not notified by either the Yarnalls or the Recorder of this request. This is despite the application documents containing information that the owners of another adjoining property, one that was not relevant to the common boundary, had been notified of the request. Despite the lack of notification to Mr and Mrs Nightingale, the Recorder acted in purported reliance on s 32 of the Land Titles Act 1980 (the Act) to cancel the existing folio for the Yarnall land and issue a new folio in its place, showing the boundary in the location depicted on the plan prepared by Mr Cromer. Shortly after this, Mr and Mrs Yarnall, in apparent reliance on the new title, removed guttering from the wall of the Nightingale's building and constructed a concrete block wall along the boundary depicted in the new title.
In the meantime, Mr and Mrs Nightingale consulted another surveyor, Mr Griggs. He prepared a plan which was said to represent "a redefinition of the boundaries of the land comprised in" the folio relating to the Nightingale land. On Mr Griggs' plan, the boundary was shown on the original location as had been depicted by the paling fence prior to the construction of the building on the Nightingale land, and in a different position to that now shown on the title to the Yarnall land.
On 23 September 2015, Mr and Mrs Nightingale lodged a document entitled "Application for rectification of boundaries", pursuant to s 142 of the Act. The application applied for "amendment of the folio/s of the register enumerated above", which was the existing title to the Nightingale land. The application sought that the rectification be in accordance with the Griggs plan.
In accordance with procedures prescribed in s 142, notice of the application was served on the Hobart Council and on Mr and Mrs Yarnall. The Yarnalls made submissions opposing the rectification. Notwithstanding these submissions, on 3 February 2016, the Recorder determined that "the boundary determination by P160732 (the Griggs plan) should prevail". An order was made whereby a new title was issued for the Nightingale land showing the boundary in accordance with the Griggs plan.
The effect of that order was that the respective title for each property shows the boundary in a different location.
On 10 October 2016, solicitors acting for Mr and Mrs Nightingale wrote to the Recorder requesting that the Recorder resolve the uncertainty relating to the true location of the boundary. The Recorder was requested to take one of the following courses of action:
"a)reversing the decision made on or shortly after 13 January 2015 the effect of which was to cancel folio 1 of volume 49215 of the Register and to issue in its place folio 1 of volume 168934 of the Register, OR
b)amending the plan attached to folio 1 of volume 168934 of the Register in [sic] to accord with the decision made by the Recorder on or about 3 February 2016 pursuant to application E10899, made by the Nightingales, for the rectification of the Boundary."
The final paragraphs of the letter are as follows:
"In the circumstances we are instructed to advise you that our clients are prepared to allow the Recorder a period of 21 days from the date of this letter to take one or other of the courses of action set out in the opening paragraphs of this letter OR to state in writing the grounds for the Recorder's refusal to do so.
So that there is no misunderstanding, we confirm that our clients intend to rely upon any statement in writing of the Recorder's grounds for refusing to act as the basis for an application pursuant to s 144 of the Act for the Recorder to show cause."
The Recorder replied to that letter on 7 October 2016. She expressly refused to take either of the actions requested by the applicants. The reasons for the refusal were stated in the Recorder's letter. Those reasons included a concession that "there is and has always been one true boundary and that single location has been determined by" the plan of survey implemented as a result of the application under s 142, that is, the Griggs plan. The Recorder acknowledged the conflict between the two titles, but justified this on the basis that adjustments made pursuant to ss 32 or 142, will only affect titles to lots on a supporting plan of survey, and noted that "adjoining owners will not automatically have their titles rectified even if they consent on or to the application. Affected adjoining owners wishing to have their title boundaries rectified or altered would need to join in the application or make a separate application as well as having their title fully surveyed".
The applicants now seek an order pursuant to s 144 of the Act, that the Recorder justify her refusal to take the requested steps, as well as consequential orders. The consequential orders include an order that the Recorder reverse the original decision made under s 32(2), which resulted in the initial adjustment of title in favour of the Yarnalls, or alternatively issue a fresh title for the Yarnall land showing the boundary on a line consistent with that now shown in the title to the Nightingale land. This application is opposed by the Recorder. The essence of the Recorder's argument is that she is not empowered to do what was asked of her by the applicants, and the existence of such a power is a necessary precondition of the exercise by this Court of its jurisdiction pursuant to s 144. There is no serious argument contrary to the proposition that s 144 can only provide this Court with jurisdiction to make consequential orders if the Recorder's refusal to exercise power was unjustified. Clearly, if the Recorder does not have such power, then her refusal to exercise the purported power was justified. The threshold issue for resolution, therefore, is whether the Recorder had power to comply with one or both of the requests made in the applicants' solicitor's letter.
The arguments of the Recorder are as follows:
· That although the Recorder now acknowledges that the title issued to the Yarnall land under s 32 does not accurately depict the true boundary, the Recorder does not have power to vary, correct or reverse the decision made pursuant to that provision.
· That although the Recorder does have power to rectify boundaries pursuant to s 142, the application that was made by the applicants related only to the Nightingale land and did not affect the Yarnall land. Accordingly, the Recorder had no power to make an order pursuant to that provision affecting the Yarnall land. Further, even if the Recorder did possess such power, she has now made the determination and no appeal was brought from that decision. The Recorder's jurisdiction is therefore spent, and she has no power to make any further orders.
The applicants argue that:
· Although there is no express power to reverse a decision made under s 32, the provisions of s 20(a) of the Acts Interpretation Act 1931 provide such a power.
· That the s 142 application was wide enough to include rectification of both titles affected by the common boundary, and such rectification should take place under that provision.

The issue under s 144

Before proceeding to consider the specific arguments, it is useful to consider the statutory context in which the Court is being asked to exercise its powers pursuant to s 144.
The Act, in effect, implements a system of registration of title to land known as the Torrens system. A crucial legal concept upon which that system is based is indefeasibility of title, as shown in the Register. That concept is given effect by s 40(1) of the Act. In Quarmby v Keating [2008] TASSC 71, 18 Tas R 284, Crawford CJ said of this legislation:
"[15] The commencing point for interpretation is as stated by Barwick CJ in Breskvar v Wall (1971) 126 CLR 376 at 385, namely: 'The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration.' (Approved by Gummow, Hayne and Callinan JJ in Black v Garnock [2007] HCA 31 at pars10 and 82, respectively.)
…
[17] The purpose and objects of the Torrens system in Tasmania is to introduce certainty of title (Black (supra), Callinan J at par72). Its fundamental purpose is to give effect to public policy whereby the Register, of itself, states the nature of the interest and not side contractual agreements which do not 'run' with the land (Queensland Premier Mines Pty Ltd v French (2007) 82 ALJR 115)."
By s 33, the Recorder is charged with the responsibility of keeping "a register of title to land which is subject to this Act". It is necessarily implicit in that obligation, that the Recorder ensure that the Register is accurate. The accuracy of the Register is a fundamental assumption underlying the concept of indefeasibility, and the certainty which is sought to be achieved thereby.
The Act confers substantial and varied powers upon the Recorder. It is clear that an important purpose of this conferral is to ensure that the Recorder has sufficient powers to maintain the accuracy of the Register. These include various powers to amend the Register, which are contained in Pt X of the Act. That Part is entitled "Amendment of the Register". Section 139 confers a general power to correct errors or supply omissions "upon such evidence as appears to (the Recorder) sufficient". The Part also includes s 142, which provides a specific process whereby the Recorder, upon application by an interested person, has wide power to take action to, among other things, rectify the description in the Register of boundaries between land.
The issue in this case concerns the Recorder's power, and perhaps obligation, to correct an error in the Register. The fact that there is such an error is not in dispute. The Recorder's determination under s 142 established the true location of the boundary between the two properties. This is not a case in which one party seeks to recover land, or in which the true owner of the land in question is in issue. If that were the case then it would not be appropriate, or probably within power, for the Recorder to exercise the powers provided by Pt X to correct the Register: see In Re Macarthy and Collins (1981) 19 NZLR 545. There is no action pending between the parties relating to such a question. The evidence before me demonstrates that this situation has arisen because the Recorder acted pursuant to s 32 to issue a title which it is now conceded shows the boundary to the Yarnall land in an incorrect position. The only question is whether the Recorder can and should act to ensure that the registered title to both adjoining pieces of land shows the boundary in the same and correct position.

Section 32

This section deals with the formation of the Register and, in particular, the description of land for the purposes of the Register. Subsection (1) provides:
"(1) Where, on the bringing of land under this Act pursuant to this Part (other than Division 1), there is not available to the Recorder a survey such as he could require under section 162, the land may be described by a verbal description or by a plan prepared from information contained in a verbal description."
The action taken by the Recorder in 2012 in respect of the Yarnall land was purportedly authorised by s 32(4) which provides:
"(4) The Recorder may, at any time —
(a) add to a verbal description a plan prepared from information contained in that description; or
(b) replace a verbal description with a plan prepared from information contained in that description or with a plan from actual survey; or
(c) replace a plan prepared from information contained in a verbal description with an amended or corrected plan of the same kind or with a plan from actual survey."
In effect, the Recorder purported to act pursuant to subpar (c) to replace a plan prepared from information contained in a verbal description, with a plan from an actual survey. Mr Turner, on behalf of the Recorder, argues that, having taken that action, there is no other power prescribed in s 32 to enable her to replace a plan from actual survey with an amended or correct plan of a similar nature, or to vary or reverse a decision already taken. Counsel makes the point that the Recorder acted on appropriate evidence at the relevant time, namely the survey supplied by Mr Cromer, and there is no other step now available to her under that provision.
Senior counsel for the applicants, Mr Sealy SC, concedes that there is no express power provided in s 32 that would authorise the Recorder to do what has been asked of her. However, counsel relies on s 20(a) of the Acts Interpretation Act, which provides:
"Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed —
(a) from time to time as occasion may require …".
In Purton v Jackson [2012] TASFC 2, Blow J (as he then was) said of this provision at [21]:
"In my view, subject to any indication in the legislation to the contrary, the prima facie position in Tasmania is that a statutory authority or decision-maker has the power to vary or reverse a statutory decision. In my view, that is a consequence of the Acts Interpretation Act 1931, s20(a) …".
Evans J agreed with this general proposition and supplied some further authority to support it. However, Crawford CJ expressed reservations about the applicability of the provisions to the circumstances of the case in question.
Of course, I am bound by the view expressed by the majority of the Full Court. However, the position noted by his Honour was a prima facie position only, subject to "any indication of the legislation to the contrary". In this respect, I agree with Mr Turner that the legislation evinces a contrary intention. Section 32(4) is expressed in precise terms that have the effect of providing the Recorder with ongoing power that may be exercised "at any time", but what the Recorder may do in accordance with that power is precisely and narrowly defined. It is a facilitative provision that provides the Recorder with a process for use in relation to the formation of the Register. The formation of the Register is achieved by bringing land under the Act, thereby making it subject to the Torrens system. The section is predicated on the assumption that not all land will be the subject of description by precise survey at that point. However, the section also manifests an intention that ultimately land will be described by reference to plans from actual survey. Considered in this statutory context, the purpose of subs (4) becomes clear. It is to provide the Recorder with appropriate flexibility to better describe land from time to time by replacing original references derived from verbal descriptions with descriptions from plans from actual survey. However, it is not intended to be a provision which provides an ongoing method for the Recorder to maintain the accuracy of the Register or to deal with disputes or errors arising from survey. As I have already noted, this is the role of the relatively extensive provisions in Pt X. As will be seen, s 142 provides the Recorder with quasi-judicial power in respect of such errors, including inaccurate descriptions of the boundary of the land.
The reliability of the legislative scheme which provides express power for the correction of the Register, and thereby excludes the operation of s 20(a) in respect of power such as that contained in s 32, is demonstrated by the circumstances of this case. The evidence which is relied upon for the correction of the Yarnall land is a fresh plan of survey prepared by Mr Griggs. The appropriate relief is the issue of a fresh title which accords with that plan, and, if necessary, a further survey of the Yarnall land in conformity with the boundary established by Mr Griggs. It is inappropriate to achieve this relief by seeking to reverse and reinstate a plan derived from verbal description. In other words, the evidence upon which the Register should be based has developed beyond that which informed the original description of the Yarnall land under s 32, and to which it would revert if the Recorder was able to simply reverse that decision. Such an action is unnecessary and would defeat the express and detailed processes which have been put in place in Pt X for the correction of the Register. These processes incorporate procedures which provide any affected person with an opportunity to make submissions and empower the Recorder with a comprehensive means of rectifying errors such as that which has arisen in this case.
Accordingly, I am satisfied that the legislation evinces an intended operation which is inconsistent with, and hence excludes the application of s 20(a) of the Acts Interpretation Act. It follows that I agree with Mr Turner's submission that the Recorder had no power under s 32 to take the action which was requested of her.

Section 142

Section 142 provides that an interested person may apply to the Recorder for the taking of action or the making of an order under subs (14). The application is to be "accompanied by such evidence in support of the application as the Recorder requires".
By subs (3), the Recorder can only proceed further with the application if satisfied that the case "can properly be dealt with under this section, rather than by an application under subsection 138W(4); and if
(b) it appears to the Recorder [inter alia] that the description of land in that folio is based on erroneous or imperfect information".
Section 138W(4) is part of a provision which deals with land acquired by adverse possession, and provides a specific power to the Recorder to make an order vesting land held in trust by the registered proprietor for the applicant on that basis. Those words in s 142(3) demonstrate that the intention of this provision is to empower the Recorder to rectify inaccuracies in the description of land which have arisen because of erroneous information provided to the Recorder, including in a plan of survey. It is not intended to deal with a dispute between parties as to the underlying ownership of land.
If the Recorder is satisfied of the threshold questions, then notice is to be given to the relevant municipal council, and also:
"(a)in the case of registered land which it is proposed to affect or which may be affected, to every person appearing by the Register to have an interest in the land."
The section provides for such a person to lodge a written objection with the Recorder within the prescribed time, specifying the grounds on which the objection is based. Upon receipt of an objection, the Recorder is empowered to conduct investigations "necessary for the proper examination of the matter" and may for that purpose hold a hearing. Power is conferred upon the Recorder to require the attendance of persons at the hearing, administer oaths, require the production of documents, and to otherwise determine the matter on the basis of evidence.
Subsection (14) provides that if no objection has been lodged, or on completion of the said investigation, the Recorder is to "decide the matter and may do any one or more of the following:
(a) amend any plan, folio of the Register, certificate of title, grant or registered dealing;
…
(d) order the rectification of an instrument registered in the Registry of Deeds;
…
(k) take any other action necessary or convenient to give effect to his or her decision."
By subsection (17), the Recorder's decision may be registered in the Supreme Court "and may be enforced … as if it were a judgment of that Court". The Recorder's decision in this case was in fact registered in this Court.
Finally, any person "affected by the decision" has a right to appeal to the Supreme Court against the Recorder's determination.
In this case, the relevant application sought an order for the amendment of the folio which then described the Nightingale land. However, it also sought an order as follows:
"1 That the southern boundary of the land comprised in Folio of the Register Volume 41150 Folio 2 which is the shared common boundary with the land comprised in the Folio of the Register Volume 168934 Folio 1 be rectified.
2 That the rectification be in accordance with Plan No 169732 prepared by surveyor Nicholas Griggs."
The application was accompanied by evidence concerning what had led up to the acceptance of Mr Cromer's plan in relation to the Yarnall land and the resultant adjustment of the boundary pursuant to s 32. On the basis of this evidence, the Recorder, acting in accordance with the procedures in s 142, gave notice to the relevant council and, also, it would seem, to Mr and Mrs Yarnall. I do not have that notice before me, but in the notice which was given to the applicants, the Recorder provided the following information:
"Notices have also been served on Hobart City Council, and on Margaret Lee Yarnall & Harvey Fronefield Yarnall who are the registered proprietors of Folio of the Register Volume 168934 Folio 1 being the adjoining property at 27 Carr Street North Hobart.
An explanatory letter has been sent to Surveyor Terry Cromer because his letters to the Recorder of Titles dated 26 May 2015 and 9 June 2015, and his lodgement of SIO 167323, are in the nature of a defence of his boundary determination in P168934, being a plan of survey of the adjoining property at 27 Carr Street North Hobart of which Margaret Lee Yarnall & Harvey Fronefield Yarnall are registered proprietors, and it is considered appropriate to address the statements which he has placed on record."
It can be inferred from this evidence that the Recorder had formed the opinion that the Yarnall land was land "which it is proposed to affect or which may be affected" by the application. It is only in that circumstance that the Recorder was required or authorised to give a notice under s 142(5) to a person having an interest in that land. I agree that the Yarnall land was land so described by the section, in respect of which notice was to be given.
Mr and Mrs Yarnall provided a statement of objection pursuant to the notice. They also provided evidence in support of their objection. The Recorder did not hold a formal hearing. At the conclusion of the investigation, the Recorder's determination was expressed in the following terms:
"Decision of the Recorder of Titles
The Assistant Recorder of Titles is not satisfied that the submissions and objection provide cogent evidence which alters the determination of the application as advised in the Notices dated 23 September 2015. The Assistant Recorder of Titles considers that the boundary determination by P169732 should prevail and that Application E10899 should be registered. The Assistant Recorder of Titles has determined to amend the description of land in Folio of the Register Volume 41150 Folio 2 to be 'Lot 2 on Plan 169732'."
As already noted, there was no appeal from the Recorder's decision and the decision was subsequently registered in this Court.
Mr Turner submits that the Recorder had no power to do what was requested of her by the applicants in their letter dated 10 October 2016, that is to amend the plan in respect of the Yarnall land to accord with the decision to rectify the boundary, because she had not been requested to make such an order in the application, and was now functus officio in respect of that application. Mr Turner submits that the Yarnall land could have been included in the original application, or the applicants could have appealed from the original decision. Further, he submits that there are other remedies available to the applicants to correct the current situation of conflicting titles, in particular, proceedings in court between the registered owners to obtain a declaration as to the position of the correct boundary.
For the reasons already given, I reject the submission that the issue should be determined by proceedings in court inter partes. What is in issue in this case is not the position of the true boundary, but rather the accuracy of the Register. This is a matter for the Recorder. Further, I am satisfied that the ambit of the original application was wide enough to encompass the type of relief which is now sought by the applicants. The definition of "interested person" in subs (21) makes it clear that the application is primarily related to the piece of land of which the applicants are the registered proprietors. However, the procedures described, in particular, in subs (5)(a), are consistent with a legislative scheme whereby the Recorder is intended to have jurisdiction to rectify a boundary, which necessarily implies that the power to do so will relate not just to the land of the applicants, but also to other land which shares that boundary. Such land must come within the definition of any other land "which may be affected" by the application. The Yarnalls were made a party to the proceedings and were given an opportunity to, and did, lodge an objection. The fact that they were given notice indicates that the Recorder had correctly considered that their land was capable of being affected by the application. The orders under subs (14) are expressed in wide terms. In particular, the Recorder has power to "amend any plan, folio of the register, certificate of title …". This power must logically extend to the land affected by the rectification of the boundary. The whole point of the provision is to rectify error for the ultimate purpose of achieving certainty by ensuring the Register is accurate. It would defeat this legislative purpose if the result of the process leaves the Register unclear as to the true location of the boundary. Such certainty can only be achieved if the title to each piece of land sharing the common boundary shows the boundary in the same position.
It follows that, having determined the true location of the boundary, the appropriate action by the Recorder was to ensure that the title and plans relating to both adjoining pieces of land were corrected at the same time. In my view, the Recorder clearly should have taken this step as a consequence of the determination made in the application.
The question remains, however, as to whether, having made the determination without appeal, and the appeal period having expired, the Recorder retained power to effectively correct her determination by dealing with the title to the Yarnall land, pursuant to the request of the applicants. Mr Turner argues that the Recorder's jurisdiction under s 142 with respect to the application is now spent.
This question brings back into consideration the issues determined in Purton v Jackson (above). Section 20(a) of the Acts Interpretation Act will operate to confer the requisite power on the Recorder unless such operation is excluded by the effect of the legislation. In that case, Blow J considered that a significant aspect of the legislative framework which operated in favour of the finality of the decision, was that the legislation conferred a right of appeal. It was held that the Resource Management and Planning Appeal Tribunal did not have power to change a decision disposing of an appeal, except in the terms expressly conferred by the legislation, and that this was the case despite the original decision being without jurisdiction.
In his reasons, Blow J discussed the High Court decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597 in which the court held that the Immigration Review Tribunal was validly able, after dismissing a review on the basis that the appellant had not attended the hearing, to set aside the dismissal and conduct a second hearing and make a different decision. Although the matter was decided by majority, various judges employed different paths of reasoning to arrive at the majority position. The various reasons were considered by the Full Court of the Federal Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288, 145 FCR 1, in which the court concluded that the only sound principle to be derived from Bhardwaj was that where there has been a decision made on the basis of jurisdictional error, the consequences will depend on the relevant legislation.
There is no suggestion in this case that there has been jurisdictional error. Further, what is sought is not a reconsideration or redetermination of the substantive decision of the Recorder, but simply that the Recorder undertake action which is clearly authorised under s 142(14), which is consequential and will give full effect to the determination that she has made. Having said this, insofar as s 142 is concerned, I think I am bound by Purton v Jackson. Section 142 evinces a clear intention that the decision of the Recorder is final. A right of appeal is provided within a specific time limit, and provision is made for the order to be registered in this Court. Accordingly, I am satisfied that the Recorder did not have power to revisit the decision under s 142.

Other powers of the Recorder

The letter from the applicants' solicitor to the Recorder of Titles requesting rectification of the plan relating to the Yarnall land did not specifically ask the Recorder to act under any particular provision of the Act. It certainly discussed the effect of the s 142 application, but the request was simply that the Recorder correct the error in the title to the Yarnall land which had come about because of the conflicting decisions. It follows that if the Recorder was empowered to correct the plan under any provision of the Act, then s 144 will be engaged by the applicants' request.
Section 139 provides as follows:
"139 Correction of errors
(1) Subject to subsection (2) and upon such evidence as appears to him sufficient, the Recorder may correct errors or supply omissions in the Register or in any instrument or duplicate registered dealing, and may call in any certificate of title, grant, or duplicate registered dealing for that purpose."
This section confers a general power of correction upon the Recorder. As both counsel have noted, the corrective power under this provision relates to errors and omissions in the Register, as well as any instrument or duplicate registered dealing. Section 3 defines "instrument" to include a plan. Section 139 is contained within Pt X, which is headed "Amendment of the Register". This Part also contains s 142. The content and structure of the Act containing these provisions, in my view, clearly evinces a legislative intention to provide the Recorder with wide power to correct errors in the Register. I reiterate my earlier point that the accuracy of the Register is a fundamental assumption underpinning the principle of indefeasibility. The powers of correction must be construed in this statutory context.
Of course, the statutory purpose also requires that these powers of correction be subject to appropriate limitation. The authorities reflect judicial concern that the unqualified exercise of the power of correction could undermine and put at risk the principle of indefeasibility. Some cases support the proposition that general powers such as that contained in s 139 should be read down so that the provision applies only to the correction of administrative errors made within the office of the Recorder. However, the cases cited by Mr Sealy, Swancare Group Inc v Commissioner for Consumer Protection [2014] WASC 80; Sahab Holdings Pty Ltd v Registrar-General [2011] NSWCA 395; DM & Longbow Pty Ltd v Registrar-General of NSW [2016] NSWSC 1844, and the application of general principle, persuade me that the relevant provisions of this Act should not be read down in that way. The correct approach is to construe those provisions in accordance with the plain and ordinary meaning of the text, and in the context of the purpose and object of the Act (Acts Interpretation Act, s 8A). Applying these principles, I construe s 139 in accordance with its terms, that is that it provides the Recorder with a general power to correct errors in the Register or an instrument, including a plan, irrespective of the source of the error.
However, I also accept that there is implied in s 139 a limitation that the power of correction should not be utilised in a manner which undermines or threatens the principle of indefeasibility. In particular, the relevant sections should not be construed as authorising correction in circumstances in which rights which would otherwise be protected by the principle of indefeasibility are affected. It is not appropriate, in this case, to fully explore the extent of the practical application of that limitation. It is sufficient to observe that it will not affect the outcome in this case. As will be explained, the correction does not impinge on any right acquired by Mr and Mrs Yarnell. It will simply ensure that the Register accurately reflects the true location of the boundary, which has been determined by due process under the Act. Further, even if the owners of the Yarnell land have acquired title to the land in question as a result of the misdescription of the boundary, which in my view they have not, such title is not indefeasible, having regard to the provisions of s 40(3)(f).
Mr Turner submits that, irrespective of the ambit of the Recorder's power under s 139, the section does not apply to the correction sought by the applicants' request in this case. He argues that the general provision in s 139, is displaced in the circumstances of this case by the specific provisions of s 143C. That section provides as follows:
"(1)    The Recorder may, of the Recorder's own motion, correct an error on a plan or accompanying document deposited or lodged with the Recorder in accordance with this or any other Act.
(2)   The Recorder may, before correcting an error, give, to such people as the Recorder considers appropriate, at least 7 days written notice of the Recorder's intention to correct the error.
(3)   A person may object to the correction proposed to be made by the Recorder before the end of the period specified in the notice given under subsection (2) .
(3A) An objection must be in writing and state the grounds on which it is based.
(4)   On receipt of an objection the Recorder may —
(a)decide not to make the proposed amendment; or
(b)amend the plan or accompanying document in accordance with the objection; or
(ba)amend the plan in accordance with the notice given under subsection (2) ; or
(c)reject the plan and any accompanying document.
(5)   If the Recorder amends a plan without the approval of the person who deposited or lodged it the Recorder shall add to the plan a note to the effect that it has been amended by the Recorder."
Mr Turner argues that s 143C covers the field in respect of the correction of plans by the Recorder. Further, he argues that the Recorder is not empowered pursuant to that section to correct the plan relating to the Yarnall land, because it is a necessary precondition of the exercise of that power, having regard to subss (2) to (4), that Mr and Mrs Yarnell be given notice and the opportunity to object to any such amendment. He submits that this has not yet occurred, and accordingly the power to make the amendment under that section has not arisen. Further, Mr Turner submits that it would be inappropriate in any event for the power under that section to be exercised because the section is intended to relate to an error on the face of the plan. He submits that the asserted error relates to the disputed boundary and, accordingly, is not amenable to correction under that provision.
Section 143C is contained within Pt XA, which is headed "Approval of plans". The contents of other sections in that Part suggest that it is concerned with powers which the Recorder may exercise upon the lodgement of a plan, although I accept that some of the powers also expressly extend to plans already lodged with the Recorder. However, an overall review of the Act demonstrates that s 143C is not intended to cover the field with respect to the amendment of plans, particularly in the case of error. One has only to consider s 142, which is a specific provision dealing with the rectification of boundaries and contains express power to amend plans consequent upon the outcome of the process specified in the section. I reiterate also the express inclusion of a plan in the definition of "instrument", which falls within the corrective power in s 139.
In any event, I am of the view that s 143C would authorise the Recorder to correct the plan in respect of the Yarnell land. I do not accept Mr Turner's submission that notice to Mr and Mrs Yarnell is a mandatory precondition of the exercise of that power. He submits that "may" as it appears in subs (2) should be construed as "shall". I reject this submission. By s 10A(1)(c) of the Acts Interpretation Act, the word "may" is to be construed as being "discretionary or enabling as the context may require". Although the section was originally inserted in 1990, and then included the word "may", it was extensively amended in 2012. However, subs (2) was essentially unaffected by that amendment. Accordingly, in my view, s 10A will apply, notwithstanding the provisions of s 10A(2). In any event, it is consistent with the intended operation of the legislation that the Recorder be afforded a discretion about the question of notification. Ordinarily, it would be appropriate to give notice, particularly in cases in which notice will ensure that a person affected will receive natural justice, and to obviate any risk that the correction will affect the indefeasibility of the relevant person's title. In the circumstances of this case, however, it is not necessary that notice be given to Mr and Mrs Yarnell for this purpose. All the Recorder was being asked to do was correct an error in the relevant plan, arising from the Recorder's determination of the true location of the boundary in the proceedings under s 142. As the Recorder herself said in the letter which responded to the applicants' request, "There is and has always been one true boundary and that single location has been determined by" the said proceedings. As already explained, this decision had been made after Mr and Mrs Yarnell had been provided with, and availed themselves of the opportunity to be heard in relation to the application. They did not appeal from the determination. It follows that there is no requirement for further notice to be given to Mr and Mrs Yarnell under s 143C. Such notice would be otiose. The true location of the boundary has already been determined by the s 142 proceedings.

Further, I do not find Mr Turner's submission that the power under s 143C is limited to errors on the face of the plan, persuasive. Firstly, if s 143C was limited in this way, then it would provide further support for the conclusion that a circumstance which falls outside the ambit of that provision, is intended to be dealt with under the general provision in s 139. Secondly, there is nothing in the plain and ordinary meaning of the words of s 143C that suggest that its application should be limited in this manner. Finally, in any event, the error sought to be corrected is an error on the face of the document. The rectification decision under s 142, leads to the inescapable conclusion that the plan in respect of the Yarnell land is incorrect in relation to the location of the true boundary.
Accordingly, I am satisfied that the Recorder has power under one or the other or both of these provisions, to correct the error in question as requested by the applicants. Although she had refused to take this action under s 142, the request provided the foundation of her jurisdiction to correct the resulting error, having regard to the provisions of s 144.

Disposition

I am satisfied that it was at the time of the request, and still is, appropriate that the Recorder take action to correct the relevant plan. This will in turn correct the Register, because the certificate of title describes the Yarnell land by reference to the erroneous plan. Nothing in the Recorder's response to the request provided adequate justification for her refusal to do so. In that response, the Recorder pointed to s 40(3)(f) of the Act, which provides that an erroneous entry in the Register arising from the wrong description of a boundary is an exception to the principle of indefeasibility. This is the effect of that section, but this does not amount to an endorsement of inaccuracy, nor detract from the importance of the accuracy of the Register. It is simply and obviously a remedial provision, designed to ameliorate the impact of absolute indefeasibility in the case of error of that nature. It cannot provide sufficient justification for failing to correct an error, once detected. On the contrary, as already discussed, this provision has the effect that the correction of the error cannot impact on the indefeasibility of title to the Yarnell land.
By virtue of s 144(2), because the Recorder has been required to justify her refusal but has failed to do so, this Court now has the power to make such order as it thinks fit. The only sensible interpretation of this provision, is that it empowers the Court to order the Recorder to do that which she is empowered to do and, in the opinion of the Court, should do. The Court's power, as explained, is clearly discretionary.
In relation to the exercise of that discretion, Mr Turner repeats the argument that it is not for the Recorder to determine the true boundary, and that this is a matter solely for legal proceedings in court. This argument ignores the obvious purpose of s 142. The true location of the boundary has already been determined under that provision. Of course, a dispute about the ownership of land may, in some circumstances, be dependent upon the determination of rights in personam, founded on law or equity, and in such a case, it will be necessary for the parties to bring proceedings in court to resolve the question: see Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59, 220 CLR 472. But I reiterate that that is not the question in this case. Mr and Mrs Yarnell have not brought action in court asserting such a right. I note also that, although they had been given notice of the hearing before me, and had been previously represented and appeared in respect of these proceedings, they declined to appear at the hearing. Further, although Mrs Yarnell had filed an affidavit, both parties specifically confirmed to me at the hearing that they did not seek to read or rely upon that affidavit. In the light of these developments, it cannot be the case that the failure of the applicants to bring proceedings of an unspecified nature in court is a reason why I should not exercise my discretion under this section. The applicants have already successfully taken action to establish the boundary. There is no reason for them to take any other action, and the appropriate cause of action is not apparent, in any event. If Mr and Mrs Yarnell claim a legal right to the land on the other side of the boundary so determined, then it must be for them to take action to establish and enforce that claim. As already noted, there is no evidence before me that they have done so, nor has a right which would support such a claim been identified to me. This submission is without merit.
As I have already determined, it is clearly appropriate that the Recorder exercise her powers to remedy the inconsistency so as to ensure the accuracy of the Register. Because of the Recorder's ongoing refusal to exercise this power, I am satisfied that I should exercise my power to order the Recorder to take the action requested of her by the applicants. Accordingly, I order that the Recorder exercise her power under either ss 139 or 143C of the Land Titles Act to correct the plan attached to folio 1 of volume 168934 of the Register so that it accords with the decision made by the Recorder in respect of the rectification of the boundary between the land comprised in lot 2 on plan 169732 and the land comprised in the plan to which this order refers.